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Lessons for aged care employers: policies are not just a case of ‘set and forget’

The employer, a large health care organisation, terminated the employment of a home care support worker with 14 years of service.

The employee was dismissed on the basis of alleged performance and conduct issues, in particular for:

breaching a workplace policy in relation to accepting private work from the employer’s clients. In a nutshell, the employee had engaged in additional activities outside of the scope of the care plan for a client for a fee, including shopping and preparing her food;

breaching a workplace policy by failing to report the deteriorating health of the client; and

failing to comply with lawful and reasonable directions, including to attend meetings with the employer to discuss its concerns regarding the above matters.

After her employment was terminated, the employee brought an unfair dismissal claim, arguing that she had used her initiative to help the client by undertaking the private work and that she did so to meet her duty of care to the client. She contended that there was no valid reason for the dismissal and considered that the employer had placed undue emphasis on its policies to justify its position and her dismissal.

What did the Commission decide?

The Fair Work Commission confirmed the legal position that it will be difficult (though not impossible) for an employee who has knowingly breached a workplace policy to make out that there is no valid reason for his or her termination where:

the workplace policy is both ‘lawful and reasonable’;

the employer has emphasised the importance of the policy to the business; and

the employer has made it clear to employees that any breach of the policy is likely to result in termination of employment.

In this case, the Commission was satisfied that there were sound reasons for the policies being in place, including to provide clarity around the role and responsibilities of home care support workers, to ensure that functions were not performed that were not funded and to protect the home care support workers against allegations of inappropriate handling of client’s property. The Commission also accepted the evidence that the employer had taken reasonable steps to make the employee aware of the applicable policies and the consequences for non-compliance, including potential termination of employment.

In light of this, and the Commission’s conclusion that the employee had engaged in misconduct by refusing to attend the scheduled meetings to discuss her alleged conduct, the Commission determined that there was a valid reason for the employee’s dismissal. It also considered that the employer had afforded the employee the requisite procedural fairness. In those circumstances, the dismissal was found not to be harsh, unjust or unreasonable.

Lessons for employers

Policies are a common and appropriate way to set the expectations with respect to employee behaviour and conduct, and to ensure the smooth running of a business, and this case demonstrates that point. However, they should be adopted with caution as they can and often do create adverse legal consequences for employers, such as exposure to a breach of contract claim, particularly where they are:

prescriptive;

promissory;

unnecessary for the smooth running of the business; and/or

not required by law;

and the employer does not follow them to the letter.

We recommend that employers therefore conduct an audit of their suite of policies.

Further, to improve their ability to rely on these policies to justify disciplinary action or to avoid a finding of vicarious liability, employers must:

identify in the policies the outcome for employees if they breach the policies;

regularly check their policies to ensure they are kept up to date, including with relevant laws;

ensure all employees are made aware of and have easy access to the policies;

conduct periodic training in these policies as appropriate (particularly policies about discrimination, harassment, victimisation and bullying); and

promptly investigate any alleged behaviour in breach of its policies, including providing employees with a reasonable opportunity to respond.

Compare jurisdictions: Litigation: Enforcement of Foreign Judgments

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